ACIT, C.C. XXVIII, Kolkata, Kolkata V. Prakash Chandra Bhutoria, Kolkata

ITA 80/KOL/2009

• Counselvise Citation: 8023514 RSA 2009
• Duration Of Justice: 3 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2012
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 1999-2000
• Appeal Filed On: 20-01-2009
• Court: TRIBUNAL
• Department Lawyers: D ROY LD
• Keywords: Reopening of assessment; Unexplained expenditure; Search and seizure; Deemed to accrue or arise in india
• Section: 2; 69C; 153A

Judgement Text

, C , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- C CALCUTTA () BEFOR E , SHRI N. VIJAYA KUMARAN, JUDICIAL MEMBER. /AND .'#., $% SHRI C.D.RAO, ACCOUNTANT MEMBER & / ITA NO. 80/KOL/2009 '( )*/ ASSESSMENT YEAR: 1999-2000 A.C.I.T,CC-XXVIII, KOLKATA PRAKASH CHANDRA BHUTORIA PAN: AHRPB 8345F (,- / APPELLANT ) - - - VERSUS - . (/0,-/ RESPONDENT ) 1 2( / C.O NO. 8/KOL/2009 ARISING OUT OF ITA NO.80/KOL/2009 A.Y 1999-2009 PRAKASH CHANDRA BHUTORIA PAN: AHRPB 8345F A.C.I.T,CC-XXVIII, KOLKATA (,- / APPELLANT ) - - - VERSUS - . (/0,-/ RESPONDENT ) ,- / 34 $ ' / FOR THE APPELLANT/DEPARTMENT: / SHRI D. ROY, LD.DR 2( 15 / /0,- $ ' / FOR THE CROSS OBJECTOR/RESPONDENT: / SHRI SUBASH AGARWAL,, LD.AR 6 7 #% /DATE OF HEARING : 26-03-2012 8) 7 #% /DATE OF PRONOUNCEMENT: 30-03-2012 $9 / ORDER , , , , , , ,, , SHRI N. VIJAYA KUMARAN, JUDICIAL MEMBER THIS APPEAL BY THE DEPARTMENT AND CROSS OBJECTION BY THE ASSESSEE ARE FOR THE ASSESSMENT YEAR 1999-2000. BOTH ARE DIRECTED AGAINS T THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS), CENTRAL-1, KOLKATA DATED 11 -0-09. 2. THE DEPARTMENT HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, LD.CIT(A) HAS ERRED IN HOLDING THAT MATERIAL FOUND DURING THE ACTION ITA NO.80/K/09 & CO NO.8/K/09-C-NVK 2 U/S.132 CAN NOT BE USED FOR THE PURPOSE OF ISSUING NOTICE U/S.148 OF THE ACT, EVEN WHEN NOTICE IS VALIDLY ISSUED AND SER VED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS W ELL AS IN LAW, LD.CIT(A) HAS ERRED IN HOLDING THAT DOCUMENT IN QUE STION WAS FOUND FROM THE PREMISES JOINTLY HELD BY THE ASSESSEE AND OTHER PERSONS, LD.CIT(A) HAS OMITTED TO LOOK INTO THE LAW WITH REG ARD TO PRESUMPTION U/S.132(4A) WHILE HOLDING SUCH VIEW. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS W ELL IN VIEW OF LAW LAID DOWN IN THE CASE OF POONARMALL VS. DIT 93 ITR 505 IT HAS BEEN HELD BY THE HONBLE SUPREME COURT THAT MATERI AL OBTAINED IN A PROCEEDINGS, EVEN IN CONTRAVENTION TO PROVISIONS OF LAW CAN BE USED FOR THE PURPOSE OF I.T LAW, WHEREAS LD.CIT(A) HAS E RRED IN HOLDING THAT THE REOPENING OF ASSESSMENT U/S.147 IN THIS C ASE IS NOT VALID. 3. THE FACTS RELEVANT ARE THAT A SEARCH AND SEIZUR E OPERATION WAS CONDUCTED U/S.132 IN THE BHUTORIA GROUP OF CASES ON 06.12.05 AND SUBSEQUENT DATES ON VARIOUS RESIDENTIAL AND OFFICE PREMISES. IN THE COURSE OF SEARCH AND SEIZURE ACTI ON ON RESIDENTIAL PREMISE OF SHRI PRAKASH CHAND BHUTORIA AT FLAT NO.2A & 2B, 4 PREOTRIA ST, K OLKATA. DOCUMENTS-PB/5 AND PB-7 WERE FOUND AND SEIZED. THESE DOCUMENTS RECORD THE EXPEN SES INCURRED BY SHRI PRAKASH CHAND BHUTORIA ON THE OCCASION OF MARRIAGE OF HIS DAUGHTE R, MS. USHA DEVI DUGAR, WHICH TOOK PLACE ON 4-12-1998. THE ASSESSING OFFICER VIDE ASSESSMEN T ORDER DATED 20-12-07 U/S. 147/144 OF THE ACT ADDED THE UNEXPLAINED EXPENDITURE OF RS.77,3 9,805/- AS DEEMED INCOME OF THE ASSESSEE U/S. 69C OF THE I.T ACT61. 4. ON APPEAL, THE LEARNED COMMISSIONER OF INCOME-TA X (APPEALS) FOUND THAT ASSESSING OFFICER SHOULD HAVE PROCEEDED U/S. 153A OF THE I.T ACT, 1961 BEING A SPECIAL PROVISION AND THIS REASSESSMENT IS ILLEGAL. HENCE, THE DEPARTMEN T AS WEL AS THE ASSESSEE BOTH IN APPEAL BEFORE US. 5. WE HAVE HEARD THE PARTIES, CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AFTER CONSIDERING THE RIVAL SU BMISSIONS, WE FIND THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS RIGHTLY H ELD THAT THERE IS NO MATERIAL TO PROVE CONCLUSIVELY THAT THE EXPENDITURE HAD INDEED BEING INCURRED BY THE ASESSEE. THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) FURTHER FOUND T HAT INVOKING OF SECTION 69C IT HAS TO BE CONCLUSIVELY SHOWN THAT THE EXPENDITURE HAD INDEED BEING INCURRED BY THE ASSESSEE. THE LEARNED ITA NO.80/K/09 & CO NO.8/K/09-C-NVK 3 COMMISSIONER OF INCOME-TAX (APPEALS), THEREFORE, AL LOWED GROUND NOS. 4 &5, WHICH IS MOST SPECIFICALLY CHALLENGED FOR THE ADDITION OF RS. 77, 39,895/- MADE U/S. 69C OF THE I.T. ACT. THE VERY FACT THAT THE DAUGHTER GOES TO THE HOUSE OF HE R HUSBAND, THE VALUABLES ETC. ARE TAKEN BY HER TO HER HUSBANDS HOUSE. EXPLAINING THE POSSESSION OF VALUABLES IS DIFFERENT FROM EXPLAINING THE EXPENDITURE ON ACQUISITION OF VALUABLES. THEREFORE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) FOUND THAT THE INFERENCE ABOUT THE ASSES SEE HAVING ACQUIRED THE VALUABLES AND INCURRED ALLEGED EXPENSES. ACCORDING TO THE LEARNE D COMMISSIONER OF INCOME-TAX (APPEALS), THEIR EXISTENCE IS FARFETCHED AND UNJUSTIFIED. FURT HER, AS RELIED BY THE LEARNED COUNSEL FOR THE ASSESSEE ON THE DEPARTMENTAL PAPER BOOK PAGES 7,10 WHICH ARE OF PANCHANAMA RELATED COPIES BASICALLY SHOW THAT THE PREMISES SUBJECT TO SEARCH IS NOT IN EXCLUSIVE POSSESSION OF THIS ASSESSEE. PAGE NO.10 IS ALSO THE PART OF PANCHANAMA , WHEREIN IT IS REMARKED AS WITH WOODEN COVER DOOR CONTAINING EIGHT ALUMINUM BONES OF JEWEL LERY ITEMS KEPT IN THE BEDROOM OF SUMER MULL BHUTORIA AT PRETORIA COURT, 4 PRETORIA ST, KOL -71 WITH I.D MARK J/1. THIS EXPLANATION SHOWS THAT THE ENTIRE MARRIAGE EXPENSES WERE MADE BY THE ASSESSEES FATHERS, HAS BEEN AMPLY PROVED. HENCE, WE AGREE WITH THE GIVEN FINDINGS OF THE LEARNED COMMISSIONER OF INCOME- TAX(APPEALS) ON MERITS. SECTION 69C IS NOT ATTRACTE D AS SECTION 69C FOR PROPER APPRECIATION IS REPRODUCED HEREUNDER:- [UNEXPLAINED EXPENDITURE, ETC. 42 69C. WHERE IN ANY FINANCIAL YEAR AN ASSESSEE HAS IN CURRED ANY EXPENDITURE AND HE OFFERS NO EXPLANATION ABOUT THE SOURCE OF SU CH EXPENDITURE OR PART THEREOF, OR THE EXPLANATION, IF ANY, OFFERED BY HIM IS NOT, IN THE OPINION OF THE 40 [ASSESSING] OFFICER, SATISFACTORY, THE AMOUNT COVER ED BY SUCH EXPENDITURE OR PART THEREOF, AS THE CASE MAY BE, MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE FOR SUCH FINANCIAL YEAR :] 43 [PROVIDED THAT, NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER PROVISION OF THIS ACT, SUCH UNEXPLAINED EXPENDITURE WHICH IS DEE MED TO BE THE INCOME OF THE ASSESSEE SHALL NOT BE ALLOWED AS A DEDUCTION UNDER ANY HEAD OF INCOME.] UNDER THE ABOVE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW ON MERITS THAT THIS ADDITION U/S.69C IS NOT SUSTAINED IN THE EYE OF LAW. THE LEA RNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS RIGHTLY DELETED THE SAME. AS WE HAVE GONE ON M ERITS, PROCEDURAL ASPECTS BECOME ACADEMIC, WHICH REQUIRES NO ADJUDICATION. ITA NO.80/K/09 & CO NO.8/K/09-C-NVK 4 6. COMING TO C.O NO. 8/KOL/09 [BY THE ASSESSEE], A S FILED BY THE ASSESSEE BEFORE US IS ALSO DISMISSED BEING IN- FRUCTUOUS. 7. IN THE RESULT, BOTH THE DEPARTMENTAL APPEAL AND CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED AS STATED ABOVE.. : $9 %$ ; 4 :< THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT.30 TH .-03-2012 SD/- SD/- ( .'#., $% ) , ,, , ( C.D.RAO, ACCOUNTANT MEMBER) ( , ) ( N.VIJAYA KUMARAN, JUDICIAL MEMBER ) DATED: 30-03-2012 *PP SR.PS/ $9 7 /'' =$)/ COPY OF THE ORDER FORWARDED TO: 1. ,- /APPELLANT- ACIT,CC-XXVIII, 18 RABINDRA SARANI, KO LKATA. 2 /0,- / RESPONDENT : PRAKASH CHAND BHUTORIA 4 PRETORIA ST ., KOL-16. 3. '9 /CIT 4. '9 ()/ CIT(A), 5. 3'4 /'/ DR, KOLKATA BENCHES, KOLKATA [0 /'/ TRUE COPY] $9/ BY ORDER ASSTT. REGISTRAR